Three Dangers of the Pence-Kobach Faux Commission Call for State Voter Roll Information

This morning I blogged about the Pence-Kobach commission’s call for voter data, and how that raised privacy and other concerns. We we now have seen the letter (via Bryan Lowry), and it raises three immediateconcerns. The letter calls on each state’s election official to provide information on lots of things (including prosecutions for election crimes), and also asks for: “publicly-available voter roll data for Connecticut, including, if publicly available under the laws of your state, the full first and last names of all registrants, middle names or initials if available, addresses, dates of birth, political party (if recorded in your state), last four digits of social security number if available, voter history (elections voted in) from 2006 onward, active/inactive status, cancelled status, information regarding any felony convictions, information regarding voter registration in another state, information regarding military status, and overseas citizen information.”

The three primary concerns:

Privacy. These information are available in various states to certain groups of people, but it is not like anyone can walk in and buy it. Having all of this information raises serious privacy concerns. Will the information be kept securely, or is it at risk of being hacked for identity theft purposes? Will it be used by the Trump campaign and other political officials for political purposes? How secure will this be?

Pretext for voter suppression efforts. It’s pretty clear attempted voter suppression is likely to go on here, as former DOJ official Vanita Gupta noted. It is quite easy to imagine someone in the Executive Office of the President—who is apparently doing the data analysis, rather than relying upon folks who have experience working with voter rolls and who are not working for a declared candidate for presidential reelection—messing with this data and showing what we already know: there’s a lot of bloat on the rolls, dead voters not removed etc—and then using this as a pretext to make it harder to register and vote. Seems like this whole exercises of the sham voter fraud commission is designed to provide a pretext for Congress to amend the National Voter Registration Act to make it harder to register to vote (including by allowing states to require documentary proof of citizenship when registering in federal elections). No one should trust the likely shoddy data analysis of this commission headed by people with a track record for not being accurate about the prevalence of voter fraud, working for a President who has made wildly unsupported allegations of voter fraud.

Federalism? What Federalism? If a commission headed by the most left-wing secretary of state in the U.S. and directed by President Obama had requested this voter information from every state, it is easy to see what the reaction would be. FOX News and the right wing media machine would claim this is about a “federal takeover” of elections, about usurping the traditional state role in policing election rolls, and about how this information will be misused to target political opponents. Indeed, SOS Kobach is one of the people who has led the charge AGAINST the federal government’s intrusion in state practices. But lets see what we hear from SOSs like Brian Kemp of Georgia, who railed against Obama/DHS attempts to try to insure that election machinery was not hacked by Russia as an intrusion on Georgia’s right to run its elections as it sees fit.

Forthcoming Publications, Recent Articles, and Working Papers

Cheap Speech and What It Has Done (to American Democracy), First Amendment Law Review (forthcoming 2018) (draft available)

The 2016 U.S. Voting Wars: From Bad to Worse, William and Mary Bill of Rights Journal (forthcoming 2018) (draft available)

Essay: Race or Party, Race as Party, or Party All the Time: Three Uneasy Approaches to Conjoined Polarization in Redistricting and Voting Cases, William and Mary Law Review (forthcoming 2018) (draft available)